Criminal charges have been dismissed against a businessman who also has sued the Fresno Police Department for civil rights violations after officers ordered a police dog to attack him.

Prosecutors had charged Cesar Rodriguez, 45, in Fresno County Superior Court with misdemeanor battery on his ex-wife and resisting arrest.

On Friday, Rodriguez was scheduled to be tried on the criminal charges. But prosecutors dismissed the case after Rodriguez’s lawyer, Michael Aed, filed a 12-page motion arguing that the Fresno Police Department had failed to turn over evidence in a timely manner as required by law, compromising his client’s right to due process.

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“The DA pursued this case for nearly two years with little to no evidence supporting their case,” said Burbidge of Walker, Hamilton & Koenig LLP in San Francisco. “We believe they were doing so at the behest of the Fresno PD in order to delay and, if possible, bar our civil case.”

“This plan has backfired on them because, through the criminal discovery process, we have uncovered evidence showing that abusive actions by the Fresno PD were even more extensive than we had originally believed,” Burbidge said. “We are now even more confident that Cesar will receive the justice he deserves for the numerous civil rights abuses he has endured.”

The DA pursued this case for nearly two years with little to no evidence supporting their case.

San Fransciso attorney Beau R. Burbidge

Assistant District Attorney Steve Wright disagreed with Burbidge.

“We filed the case and pursued charges because we believed that Mr. Rodriguez violated the law and that we could prove it,” Wright said.

After the case was assigned out for the trial, Wright said there were some pre-trial rulings that made the case difficult to prosecute.

“Based on the health problems of the DV (domestic violence) victim, the rulings and the evidence that we had, (the prosecutor) felt that we could not prove the case beyond a reasonable doubt – so he dismissed it,” Wright said.

Rodriguez owns an architectural design and consulting business at 4321 N. West Ave. near Ashlan Avenue. He and his ex-wife are long divorced but have been living together in his house since 2001 so they could raise their three children.

Police say on the evening of April 30, 2014, Rodriguez and his ex-wife got into a verbal argument. She called police and reported that he threatened to kick her out of the house.

Rodriguez, however, left before police arrived around 8 p.m.

When officers arrived, the ex-wife reported that Rodriguez had pushed her while she was calling police. At the ex-wife’s request, the police obtained an emergency protective order that prohibited Rodriguez from having contact with her. The ex-wife then told police Rodriguez would likely be in his office, and she gave officers keys togain entry.

Police arrived there around 11 p.m. and saw his truck. Officers called him on his cellphone to come out, but he denied being there. Instead, he told police to call his attorney.

Seeing a silhouette in the location, the officers decided to go into Rodriguez’s office using the keys provided by his ex-wife. After they unlocked the front door, officers announced several times that they had a police dog. When Rodriguez failed to respond, the officers unlocked the door to Rodriguez’s private office and unleashed the dog.

The lawsuit says Rodriguez was lying down when a police dog named Kubo attacked him, “mauling him and biting into his left upper arm, causing severe puncture wounds.” Recognizing the severity of the injuries, police rushed Rodriguez to the hospital, the lawsuit says.

While at the hospital, Rodriguez was placed in police custody. He was later charged with two misdemeanors.

The lawsuit says Cesar Rodriguez was lying down when a police dog named Kubo attacked him, “mauling him and biting into his left upper arm, causing severe puncture wounds.”

After the lawsuit was filed, Deputy Police Chief Robert Nevarez said officers did nothing wrong and did not violate department policy. Once officers determined that domestic violence had occurred, they had a duty to look for Rodriguez, Nevarez said.

Officers entered Rodriguez’s office, Nevarez said, because they had a reasonable belief that his ex-wife had legal standing to give them permission; she worked there and had keys to the office. In addition, Nevarez said, Rodriguez was being dishonest when he initially told police that he wasn’t in the office. Once officers determined he was inside, he was given several warnings to surrender before the police dog was deployed, Nevarez said.

“He had plenty of opportunity to give himself up,” said Nevarez, adding that the city plans to vigorously defend itself in court against the lawsuit.

Burbidge said the criminal charges were ridiculous because Rodriguez denies hitting his former spouse and had gone to his office and posed no threat to her. The lawsuit says officers looked for injuries on the ex-wife but found none.

Burbidge also said police using a dog to attack Rodriguez was “unreasonable and excessive use of force.” Officers didn’t have a warrant to arrest Rodriguez or to search his office, and his ex-wife did not have the legal authority to give officers consent to enter the office since she was divorced from Rodriguez and did not own the business, the lawyer said.

In addition, Burbidge said, Rodriguez was unarmed when attacked by the dog, and no weapons were involved in his alleged dispute with his ex-wife.

In his lawsuit, Rodriguez is seeking unspecified damages for pain and suffering and intentional infliction of emotional distress. He also is seeking punitive damages against the officers to ensure other residents aren’t attacked unnecessarily by a police dog.

Five months after the lawsuit was filed, police said Kubo bit an innocent bystander while officers pursued a suspect in southeast Fresno. The city paid for the man’s injuries, police said.